Sheri Hill v. Fitness International, LLC D/B/A L.A. Fitness

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00142-CV
___________________________

SHERI HILL, Appellant

V.

FITNESS INTERNATIONAL, LLC D/B/A L.A. FITNESS, Appellee

On Appeal from the 442nd District Court
Denton County, Texas
Trial Court No. 21-2378-442

Before Sudderth, C.J.; Kerr and Bassel, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

This is a slip-and-fall case in which Appellant Sheri Hill sued Appellee Fitness

International, LLC d/b/a L.A. Fitness for premises liability, negligence, and gross

negligence. L.A. Fitness moved for a combined traditional summary judgment on its

affirmative defense of release, 1 see Tex. R. Civ. P. 94, and a no-evidence summary

judgment on premises liability. The trial court granted L.A. Fitness’s motion. In a

single issue containing multiple arguments, Hill complains that the trial court erred by

granting L.A. Fitness’s motion and by sustaining L.A. Fitness’s objections to some of

her summary-judgment evidence.

Because Hill signed a release that waived her premises-liability claim, 2 the trial

court did not err by granting summary judgment on it. However, because Hill’s

1
A defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all elements of that defense. See Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see also Tex. R. Civ. P. 166a(b), (c).
2
As pointed out by L.A. Fitness, Hill’s negligence claim was subsumed by her
premises-liability claim. See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex.
2010) (“We have recognized that negligent activity encompasses a malfeasance theory
based on affirmative, contemporaneous conduct by the owner that caused the injury,
while premises liability encompasses a nonfeasance theory based on the owner’s failure
to take measures to make the property safe.” (footnotes omitted)); see also United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (distinguishing
contemporaneous negligent activity on the property—ordinary negligence—from
premises liability); DeLamar v. Fort Worth Mountain Biker’s Ass’n, No. 02-17-00404-CV,
2019 WL 311517, at *4 (Tex. App.—Fort Worth Jan. 24, 2019, pet. denied) (mem. op.)
(“While, theoretically, a litigant may maintain causes of action for both general
negligence and premises liability, to be viable, the general negligence theory of recovery

2
remaining summary-judgment evidence was sufficient to raise a fact issue on all of L.A.

Fitness’s no-evidence grounds and because L.A. Fitness did not move for summary

judgment on—or amend its summary-judgment motion to address—the remaining

elements of Hill’s gross-negligence claim, 3 we join the majority of our sister courts that

have addressed the issue of whether a gross-negligence claim can survive a negligence

claim’s release to hold that on this record, Hill’s claim has done so. Accordingly, we

reverse the portion of the trial court’s judgment granting summary judgment on Hill’s

gross-negligence claim and remand the case for further proceedings on that claim.

II. Background

In May 2011, Hill completed an L.A. Fitness membership application (the

contract). The first page of the three-page contract states—in bold, in a larger font than

the surrounding text, and immediately above where Hill signed—

must be based not upon an injury resulting from the condition of the property, but
upon the defendant’s contemporaneous activity.”); Mangham v. YMCA of Austin, Tex.-
Hays Cmtys., 408 S.W.3d 923, 929 (Tex. App.—Austin 2013, no pet.) (same).

Hill added her gross-negligence claim on the same day that she filed her
3

summary-judgment response.

3
 The contract’s second page contains a boxed provision that provided (as noted

on the first page) a comprehensive release and waiver of liability and indemnity, stating,

The boxed text was the same size as the surrounding text. Immediately below the boxed

text was a statement in capital letters that “IN NO EVENT SHALL L.A. FITNESS

BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL

DAMAGES.”

Eight years later, Hill slipped on water in the ladies’ locker room, was injured

when she fell, and sued L.A. Fitness to recover for her injuries. L.A. Fitness sought a

traditional summary judgment on its affirmative defense of release, attaching a copy of

the contract signed by Hill and her discovery response admitting that she had signed it,

and a no-evidence summary judgment on four premises-liability elements. Hill

responded to L.A. Fitness’s motion by attaching her deposition transcript and

deposition transcripts from a former L.A. Fitness water aerobics instructor and from a

former L.A. Fitness member-service and operations manager. L.A. Fitness objected to

4
the former employees’ deposition transcripts, which had been videotaped and

transcribed, but not by a court reporter, and moved to strike them. The trial court

sustained the objections, struck the former employees’ transcripts, and granted L.A.

Fitness’s summary-judgment motion.

III. Discussion

In a single, multi-pronged issue, Hill argues that L.A. Fitness’s motion should

have been denied because (1) the trial court abused its discretion by striking the former

employees’ deposition transcripts; (2) the release did not meet the “fair notice”

standards requiring that it be conspicuous and expressly include negligence; (3) the

release did not include her gross-negligence claim; and (4) even if the trial court properly

struck the former employees’ deposition transcripts, the remaining summary-judgment

evidence raised a genuine issue of material fact regarding each of L.A. Fitness’s no-

evidence grounds.

A. Summary-judgment evidence

If a trial court has properly sustained objections to summary-judgment evidence,

we may not consider those parts of the record. Hobson v. Francis, No. 02-18-00180-CV,

2019 WL 2635562, at *6 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.).

We review a trial court’s decision to exclude summary-judgment evidence for an abuse

of discretion. Id.

In the trial court, Hill used written transcriptions of the two former employees’

videotaped depositions but did not use a certified court reporter to make the

5
transcriptions. See Tex. R. Civ. P. 203.6. L.A. Fitness objected that its former

employees’ deposition transcripts were “not certified or authenticated in any way, nor

were they prepared by a licensed court reporter,” that they contained unclear

transcription errors, and that the lack of authentication rendered the exhibits “nothing

more than unauthenticated hearsay.” The trial court’s order sustaining L.A. Fitness’s

objections does not state the basis for its order.

Because the trial court’s order does not state upon which ground it sustained

L.A. Fitness’s objections, to avoid waiving this sub-issue, Hill was required to challenge

each ground: (1) lack of certification; (2) lack of authentication; (3) lack of preparation

by a licensed court reporter; (4) unclear transcription errors; and (5) hearsay. See Tex.

R. App. P. 33.1; Rex Performance Prods., LLC v. Bettegowda, No. 02-18-00171-CV, 2019

WL 3955205, at *3 (Tex. App.—Fort Worth Aug. 22, 2019, no pet.) (mem. op.) (“When

an appellee objects to evidence on several independent grounds and, on appeal, the

appellant complains of the exclusion of the evidence on only one of those grounds, the

appellant waives any error by failing to challenge all possible grounds for the trial court’s

ruling that sustained the objection.”); see also 6 McDonald & Carlson Tex. Civ. Prac.

App. Prac. § 38:4 (2d ed.) (defining scope of attack on trial court’s ruling).

On appeal, Hill complains (1) that the trial court improperly struck the transcripts

on the basis that a stenographic reporter had not been used to take the depositions,

which she contends was an abuse of discretion under Rule of Civil Procedure 203.6(a);

(2) that the trial court should have required “that the transcriptions be transcribed from

6
a certified court reporter rather than striking the exhibits for use as evidence” but never

gave her the opportunity to obtain a transcript from a certified court reporter; (3) that

L.A. Fitness was not surprised or prejudiced because it was represented by counsel at

the depositions and able to question the witnesses; and (4) that if the trial court struck

the exhibits as hearsay, it abused its discretion by doing so because the depositions were

videotaped and taken under oath. 4 Hill does not challenge L.A. Fitness’s objection that

the deposition transcripts contained unclear transcription errors.5 Accordingly, we

4
In its response, L.A. Fitness argues that, among other things, Hill’s failure to
object to the trial court’s ruling on L.A. Fitness’s objections did not preserve error,
referring us to Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 568–69 (Tex.
App.—Amarillo 2013, pet. denied), and Rollins v. Uribe, No. 12-19-00262-CV, 2020 WL
1283904, at *2 (Tex. App.—Tyler Mar. 18, 2020, no pet.) (mem. op.), to support its
waiver argument. Both of those cases rely on Cantu v. Horany, 195 S.W.3d 867, 871
(Tex. App.—Dallas 2006, no pet.), which this court has declined to follow on that basis.
Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 n.4
(Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.) (“We do not believe a party
is required to object to the sustaining of an objection in order to complain of the
sustaining of the objection on appeal; to the extent these decisions by our sister courts
hold otherwise, we decline to follow them.”); see Hon. David Hittner & Lynne Liberato,
Summary Judgments in Texas: State and Federal Practice, 60 S. Tex. L. Rev. 1, 63 (2019)
(noting split in authority and observing that “[t]he better reasoned approach should be
that there is no requirement. Summary judgment practice tends to mirror trial court
procedure and a lawyer need not object to a ruling sustaining an objection at trial to
preserve error.”); see also Browder v. Moree, 659 S.W.3d 421, 423 (Tex. 2022) (noting, in
jury-trial-demand context, that “neither our procedural rules nor this Court’s decisions
require a party that has obtained an adverse ruling from the trial court to take the further
step of objecting to that ruling to preserve it for appellate review”).
5
Instead, in her reply brief, Hill states that at the March 22, 2022 summary-
judgment hearing, the trial court told her that it would give her time to receive a
certification for the transcripts and that L.A. Fitness waived its objections by opting to
proceed with arguments on the merits. In support of these assertions, Hill refers us to
a hearing transcript that she attached as an appendix to her reply. We may not consider

7
overrule this sub-issue on the unchallenged ground. See Rex Performance Prods., LLC,

2019 WL 3955205, at *3; Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d 676, 681 (Tex.

App.—Houston [1st Dist.] 2002, no pet.).

B. Release

A release is an agreement in which a party agrees that a duty or obligation owed

by the other party is discharged immediately or on the occurrence of a condition; it

extinguishes a cause of action and bars recovery on the released matter. Flores v. Hansen,

No. 2-09-465-CV, 2010 WL 3618737, at *4 (Tex. App.—Fort Worth Sept. 16, 2010, no

pet.) (mem. op.). It is subject to the normal rules of contract construction. Id. It does

not have to anticipate and identify each potential cause of action relating to the release’s

subject matter, but to preclude a claim, it must “mention” it. Id.

Further, as we have recently reiterated,

A release—an agreement to relieve a party of liability for its own future
negligence—is an extraordinary shifting of risk, and the law therefore
applies the fair notice requirements of indemnity agreements to releases.
Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).
Fair notice consists of two parts: (1) the express negligence doctrine,
under which a party seeking a release from the consequences of that
party’s own negligence must express that intent in specific terms within
the four corners of the contract, and (2) the conspicuous requirement,
which mandates that something must appear on the face of the contract
to attract the attention of a reasonable person looking at it. Id. The
Supreme Court of Texas has adopted the Uniform Commercial Code’s

documents that do not appear in the record. Murphy v. Leveille, No. 2-08-130-CV, 2009
WL 2619857, at *2 n.3 (Tex. App.—Fort Worth Aug. 26, 2009, no pet.) (per curiam)
(mem. op.). This court must hear and determine a case based on the record as filed and
may not consider documents attached as exhibits to briefs. Id. Accordingly, we will
not review the attached document, and it plays no role in our analysis. See id.

8
 definition of conspicuousness, which provides in part that “[a] term or
clause is conspicuous when it is so written that a reasonable person against
whom it is to operate ought to have noticed it.” Id. at 511. Whether a
contract meets the fair notice requirements is a question of law. Id. at 509.

Coleman v. Otese Ltd., No. 02-19-00015-CV, 2020 WL 370577, at *4 (Tex. App.—Fort

Worth Jan. 23, 2020, no pet.) (mem. op.); see Dresser Indus., 853 S.W.2d at 509

(“[C]ompliance with both of the fair notice requirements is a question of law for the

court.”). The UCC provides that “conspicuous” terms include the following:

(A) a heading in capitals equal to or greater in size than the surrounding
text, or in contrasting type, font, or color to the surrounding text of the
same or lesser size; and

(B) language in the body of a record or display in larger type than the
surrounding text, or in contrasting type, font, or color to the surrounding
text of the same size, or set off from surrounding text of the same size by
symbols or other marks that call attention to the language.

Tex. Bus. & Com. Code Ann. § 1.201(b)(10).

In Dresser Industries, before adopting the UCC’s definition of conspicuousness,

the supreme court recounted examples of when language had been sufficiently

conspicuous to afford fair notice, such as

• a one-page contract with indemnity language not hidden under a separate heading
or surrounded by unrelated terms, Enserch Corp. v. Parker, 794 S.W.2d 2, 9 (Tex.
1990); and

• a purchase order that referred specifically to the indemnity provision on the order’s
reverse side and that contained a notice printed in large, red type on the front of
each page stating that the agreement included the terms on the order’s reverse side,
Goodyear Tire & Rubber Co. v. Jefferson Constr. Co., 565 S.W.2d 916, 920 (Tex. 1978).

9
853 S.W.2d at 510. The court also recounted when language had not been sufficiently

conspicuous, such as

• an indemnity provision hidden on the reverse side of a sales order under a paragraph
entitled “Warranty” and surrounded by completely unrelated terms, K & S Oil Well
Serv., Inc. v. Cabot Corp., 491 S.W.2d 733, 737 (Tex. App.—Corpus Christi–Edinburg
1973, writ ref’d n.r.e.);

• an indemnity provision on the back side of a delivery order, Rourke v. Garza, 511
S.W.2d 331, 344 (Tex. App.—Houston [1st Dist.] 1974), aff’d, 530 S.W.2d 794 (Tex.
1975); and

• indemnity language in small, light type on the back of a rental form and surrounded
by unrelated terms, Safway Scaffold Co. v. Safway Steel Prods., Inc., 570 S.W.2d 225, 228
(Tex. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.).

Id. The court held that the release provisions in Dresser Industries were not conspicuous

when they were located on the back of a work order in a series of numbered paragraphs

without headings or contrasting type and the paragraphs were not so short that every

term must be considered conspicuous. Id. at 511.

Applying Dresser Industries, four years later, the court held that “a six-paragraph

release printed in minuscule typeface on the front of a one-page ‘Release and Entry

Form’ for motorcycle racing,” which was practically illegible, was not sufficiently

conspicuous even though the headings in the release were in different, larger formats

than the release language and the release was the only substantive writing on the single-

page form. Littlefield v. Schaefer, 955 S.W.2d 272, 273–75 (Tex. 1997) (noting that as a

matter of law, an exculpatory clause will not be enforced when a party is not able to

know what the contract terms are because they are unreadable); cf. Akin v. Bally Total

10
Fitness Corp., No. 10-05-00280-CV, 2007 WL 475406, at *2 (Tex. App.—Waco Feb. 14,

2007, pet. denied) (mem. op.) (holding release was conspicuous when the clause

appeared in bold type and in part in larger type, was the only paragraph enclosed by a

box, and was expressly referenced by paragraph number just above the signature line).

We addressed the release question in Coleman, in which an injured race car driver

sued the racetrack’s owner, who moved for summary judgment on the affirmative

defense of release, among other grounds. 2020 WL 370577, at *1. We partially reversed

the summary judgment on the ground of release because the summary-judgment

evidence did not establish as a matter of law that the driver had released his negligence

claim. Id. Instead, the summary-judgment evidence raised a fact issue when it

established that, before the race, the driver signed a “tech card” that did not contain

language expressing an intent to relieve the racetrack of liability for its own negligence

and did not otherwise incorporate a release. Id. at *5. Further, the racetrack’s owner

did not present any evidence of the identity of the person who signed a release form

for the driver that day and did not establish as a matter of law that any of the driver’s

crew members had actual or apparent authority to do so. Id. at *7.

In contrast to Dresser Industries, Coleman, and other cases in which release language

has been held inconspicuous or otherwise did not express an intent to relieve a

defendant of liability, the first page of the contract here states in bold, in a font size

larger than the surrounding text, and immediately above where Hill signed, that it

“contains a full and complete release of claims on page 2.” On the contract’s

11
second page, in a separate boxed provision and highlighted by the language

“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND

INDEMNITY,” the contract sets out a comprehensive release, which is followed by

related terms about damages in capital letters. L.A. Fitness attached to its summary-

judgment motion Hill’s responses to its requests for admission in which she admitted

that she had signed the contract.

Further, regarding the express-negligence doctrine and the expression of intent

in specific terms within the contract’s four corners, see Coleman, 2020 WL 370577, at *4,

the release’s terms expressly state that using the facility “involves risks of injury,” that

the member “assumes full responsibility for such risks,” and that the member “forever

gives up any claim or demands therefor[], on account of injury to [her] person . . . whether

caused by the active or passive negligence[6] of L.A. Fitness or otherwise, to the fullest extent

permitted by law, while Member . . . [is] in, upon, or about L.A. Fitness premises or

using any L.A. Fitness facilities.” [Emphasis added.] It defines “risk of injury” to

include “accidental injuries occurring anywhere in Club dressing rooms.”

Because the contract provided fair notice of the release, which expressly

addressed negligence claims, the trial court did not err by granting summary judgment

to L.A. Fitness on Hill’s premises-liability claim on this basis. See Grijalva v. Bally Total

“Active negligence involves affirmative action, positive activity, or the doing of
6

something that should not have been done[,] whereas passive negligence is a failure to
do something that should have been done.” 53 Tex. Jur. 3d Negligence § 2 (footnotes
omitted).

12
Fitness Corp., No. 01-14-00217-CV, 2015 WL 1544582, at *5 (Tex. App.—Houston [1st

Dist.] Apr. 2, 2015, no pet.) (mem. op.) (noting that membership agreement stated,

approximately one inch above plaintiff’s signature, in capital letters and bold typeface,

that the agreement contained a waiver and release provision that applied to the

plaintiff). We overrule this portion of Hill’s sole issue.

C. Gross negligence

Hill asserts that the release did not release her gross-negligence claim, arguing

that “[o]rdinary negligence is not of the same ilk as gross negligence,” and that she

presented sufficient evidence to defeat L.A. Fitness’s no-evidence motion on her

premises-liability claim. L.A. Fitness acknowledges that the release does not preclude

Hill’s gross-negligence claim but asserts that the trial court correctly dismissed the

gross-negligence claim because “[w]hen there is no evidence of ordinary negligence,

there can be no gross negligence” and that the common elements of the premises-

liability and gross-negligence claims allowed its motion to defeat both; it directs us to

its no-evidence grounds on Hill’s premises-liability claim.

1. Relationship between premises liability and gross negligence
Although premises liability is itself a branch of negligence law, it is a “special

form” with different elements that define a property owner’s duty with respect to those

who enter the property. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex.

2016) (noting that depending on the circumstances, a person injured on another’s

property may have either a negligence claim or a premises-liability claim). Generally,

13
premises owners have a duty to protect invitees 7 from, or warn them of, conditions

posing unreasonable risks of harm if the owners knew of the conditions or, in the

exercise of reasonable care, should have known of them. Henkel v. Norman, 441 S.W.3d

249, 251 (Tex. 2014).

To prevail on a premises-liability claim against a property owner, an injured

invitee must establish four elements: (1) the property owner had actual or constructive

knowledge of the condition causing the injury; (2) the condition posed an unreasonable

risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate

the risk; and (4) the property owner’s failure to use reasonable care to reduce or

eliminate the risk proximately caused the invitee’s injuries. Id. at 251–52. An owner’s

premises-liability duties, like its negligence duties, are limited to a duty to exercise

ordinary, reasonable care. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015);

see JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (“When analyzing

a negligence claim, we first ask whether the defendant owed the plaintiff a duty.”).

The existence of a duty of care is also an element of a gross-negligence claim.

AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 298 (Tex. 2020) (citing Ford Motor Co.

v. Miles, 967 S.W.2d 377, 390 (Tex. 1998) (Gonzalez, J., concurring), for the proposition

7
The parties do not dispute that Hill was an invitee at the time of the accident or
that L.A. Fitness was the property’s owner. See Pena v. Harp Holdings, LLC, No. 07-20-
00131-CV, 2021 WL 4207000, at *4, *9 (Tex. App.—Amarillo Sept. 16, 2021, no pet.)
(mem. op.) (“A premises liability claim is, therefore, a special form of negligence claim
in which the duty owed to the injured party depends on that party’s status on the
premises at the time of the incident.”).

14
that negligence and gross negligence are not separable causes of action but are

inextricably intertwined); Aikens v. Dueling, No. 02-21-00320-CV, 2022 WL 3651976, at

*6 (Tex. App.—Fort Worth Aug. 25, 2022, no pet.) (mem. op.) (“[W]ithout evidence

of negligence, there can be no gross negligence to support exemplary damages.”).

Gross negligence presumes a negligent act or omission, see Transp. Ins. Co. v.

Moriel, 879 S.W.2d 10, 23 (Tex. 1994) (op. on reh’g),8 and includes two additional

components: (1) viewed objectively from the actor’s standpoint, the act or omission

complained of must involve an extreme degree of risk, considering the probability and

magnitude of the potential harm to others; and (2) the actor must have actual, subjective

awareness of the risk involved but nevertheless proceed in conscious indifference to

others’ rights, safety, or welfare, La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.

1999). “[W]hat separates ordinary negligence from gross negligence is the defendant’s

state of mind; in other words, the plaintiff must show that the defendant knew about

the peril, but his acts or omissions demonstrate that he did not care.” Id. at 246–47; see

Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993) (observing that what

lifts ordinary negligence into gross negligence is the defendant’s mental attitude such

8
In Moriel, the court noted that in every negligence or gross-negligence case, some
injury has allegedly occurred but the injury’s magnitude may be entirely
disproportionate to the riskiness of the behavior that caused it. 879 S.W.2d at 23. By
way of example, the court cited “inadvertently dropping a wooden board into the metal
hold of a ship[, which] may constitute negligence, but cannot be gross negligence. This
is so even though the board, upon landing, triggers a . . . chain reaction, eventually
causing the whole ship to explode.” Id.

15
that gross negligence can never be the result of momentary thoughtlessness,

inadvertence, or error of judgment).

The supreme court has “indicated that pre-injury waivers of future liability for

gross negligence are void as against public policy.” Zachry Constr. Corp. v. Port of Hous.

Auth. of Harris Cnty., 449 S.W.3d 98, 116 (Tex. 2014); see Mem’l Med. Ctr. of E. Tex. v.

Keszler, 943 S.W.2d 433, 435 (Tex. 1997) (acknowledging holding in Smith v. Golden

Triangle Raceway, 708 S.W.2d 574 (Tex. App.—Beaumont 1986, no writ), that a release

of gross negligence is against public policy but narrowing Smith with regard to post-

injury releases of gross-negligence claims); see also McCloskey v. Clubs of Cordillera Ranch,

LP, No. 04-17-00234-CV, 2017 WL 6502444, at *3 (Tex. App.—San Antonio Dec. 20,

2017, no pet.) (mem. op.) (citing Zachry Constr. Corp. for the proposition that a pre-injury

release of future liability for gross negligence is void against public policy); Tex. Moto-

Plex, Inc. v. Phelps, No. 11-03-00336-CV, 2006 WL 246520, at *2 (Tex. App.—Eastland

Feb. 2, 2006, no pet.) (mem. op.) (“Pre-accident releases of gross negligence violate

Texas public policy.”). Accordingly, the release did not operate to negate Hill’s gross-

negligence claim. We must next address whether a gross-negligence claim can survive

the release of a negligence claim.

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 2. Split in authority

There is currently a split in authority regarding whether the absence of a viable

negligence claim because of a release defeats a gross-negligence claim.9 The First and

Fourth Courts of Appeals have held that the absence of a viable negligence claim

removes any justification for imposing actual damages, defeating the gross-negligence

claim. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 126–27

(Tex. App.—Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891

S.W.2d 713, 722 (Tex. App.—San Antonio 1994, writ denied); cf. McCloskey, 2017 WL

6502444, at *4 (concluding no error in granting no-evidence motion for summary

judgment filed on gross-negligence claim when appellant provided no evidence that any

of the appellees had an actual, subjective awareness of the risk and proceeded with

conscious indifference).

The Fifth, Ninth, Tenth, and Fourteenth Courts of Appeals have held otherwise.

See Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 926 (Tex. App.—Dallas 2013,

no pet.); Akin, 2007 WL 475406, at *3; Rosen v. Nat’l Hot Rod Ass’n, No. 14-94-00775-

CV, 1995 WL 755712, at *7 n.1 (Tex. App.—Houston [14th Dist.] Dec. 21, 1995, writ

denied) (not designated for publication); Smith, 708 S.W.2d at 574–76.10 We begin our

chronological review with Smith, in which the issue was first addressed.

9
Hill’s brief discusses a number of these cases. L.A. Fitness’s brief does not.
10
The Thirteenth Court of Appeals has avoided addressing the issue. See Benavidez
v. Univ. of Tex.-Pan Am., No. 13-13-00006-CV, 2014 WL 5500469, at *6 (Tex. App.—

17
 a. Smith v. Golden Triangle Raceway (Ninth Court, 1986)

The plaintiff in Smith was injured in the “pit area” of a raceway and sued for

negligence and gross negligence. 708 S.W.2d at 574. The raceway moved for and

received summary judgment on the basis of the release the plaintiff had signed. Id. The

court held that the release was valid as to the plaintiff’s negligence claim but—looking

to cases from South Dakota, Ohio, Maryland, Colorado, and the Fifth and Eleventh

Circuits, as well as the Restatement of Contracts because there were no Texas cases on

point—it held that “a term in a release attempting to exempt one from liability or

damages occasioned by gross negligence is against public policy.” Id. at 576. 11 It

therefore remanded the case to trial “only on the issue of gross negligence and the actual

and punitive damages attributable to such gross negligence, if any.” Id.

b. Newman v. Tropical Visions, Inc. (Fourth Court, 1994)

In Newman, the plaintiffs sued for negligence, gross negligence, and DTPA

violations resulting from the deceased’s participation in the defendants’ scuba

Corpus Christi–Edinburg Oct. 30, 2014, no pet.) (mem. op.) (declining to address
unraised issue after noting that it had “never addressed the issue of whether a release
from liability for gross negligence is separable from a release of liability from negligence,
or whether a release of liability for gross negligence violates public policy”).
11
In Keszler, the supreme court narrowed Smith’s broad holding that a release of
gross negligence is against public policy by noting that the Ninth Court had failed to
distinguish a pre-accident waiver of liability from a post-injury release made in
settlement of claims. 943 S.W.2d at 435 (“We have never held post-injury releases of
gross[-]negligence claims invalid. There is no logic in prohibiting people from settling
existing claims.”).

18
certification course in which the deceased had signed a pre-injury liability release. 891

S.W.2d at 715–16. The defendants moved for and received summary judgment based

on the defenses of release and “consent/express assumption of the risk.” Id. at 716–

17. The deceased had agreed, under the release, to relieve the defendants from “all

liability . . . caused by negligence.” Id. at 719.

(1) Majority opinion

The court’s majority opinion attempted to distinguish Smith based on the

subsequent 1987 “tort reform” legislation, which modified the common-law definition

of gross negligence. Id. at 720–21. Although the court noted that gross negligence

“may be tried and determined separately from negligence, as in actions brought under

the worker’s compensation statute for exemplary damages” and “may be a separable

issue [that] can be determined upon a limited remand of a proceeding,” it stated that

there still must be a basis for actual damages (negligence) in order to recover for

exemplary damages (gross negligence). Id. at 721–22 (“The difference between the two

forms of negligence is one of degree rather than kind[;] . . . [w]hat lifts ordinary

negligence into gross negligence is the defendant’s mental attitude.”).

Because the deceased had waived the defendants’ liability for negligence in the

release, “the absence of a viable negligence claim removes any justification for imposing

actual damages” and “at least in the context of this case—negligence and gross

negligence are not separable.” Id. at 722. The court expressly noted though that its

holding was limited by the plaintiffs’ failure to raise issues such as fraud, ambiguity,

19
mistake, and the “express negligence” rule in their summary-judgment response and

that it therefore did not address—and expressed no opinion on—“whether a pre-injury

release which exempts one from the consequences of his gross negligence violates

public policy.” Id.

(2) Concurring and dissenting opinion

Chief Justice Chapa dissented to the portion of the majority’s holding that the

release waived the defendants’ liability for gross negligence and would have held that

under existing Texas case law, and as a matter of public policy, gross negligence cannot

be waived. Id. at 723 (Chapa, C.J., concurring in part and dissenting in part). The chief

justice noted that at that time, Smith was the only case in Texas that had addressed the

issue of whether an express release could relieve a defendant from liability for damages

occasioned by its own gross negligence and had “unequivocally held that such a release

is void as against public policy.” Id.

The chief justice further noted that nothing precluded an award of actual

damages for gross negligence, that a jury finding of actual damages resulting from a

grossly negligent act would serve as the predicate for possible exemplary damages in

conformance with Civil Practice and Remedies Code Section 41.004, and that actual

damages need only exist but do not necessarily have to be recoverable, noting that “[t]he

most visible instance in which a plaintiff is barred from recovering actual damages for

negligence but can nevertheless recover exemplary damages is a survivor’s claim for

wrongful death due to the gross negligence of the deceased’s employer” under the

20
worker’s compensation statute. Id. at 724–25. The chief justice observed that the

situation was analogous, stating,

But for the release [that] waived ordinary negligence, Appellants would be
entitled to recover damages based on that negligence. The fact that they
are barred by the signed waiver from pursuing a claim for monetary
damages based on ordinary negligence should not bar them from pursuing
their claim for damages based on gross negligence.

Id. at 725. Regarding the public policy at issue, Chief Justice Chapa noted, “[A] provider

of services to the public should not be able to cause the death of a patron by an act or

omission committed with a conscious indifference to that patron’s safety with absolute

impunity.” Id. at 725–26.

c. Rosen v. National Hot Rod Association (Fourteenth Court, 1995)

In Rosen, the plaintiff sued the raceway and racing association after his vehicle

overturned in an amateur drag race and was consumed by flames. 1995 WL 755712, at

*1. He alleged, among other things, negligence and gross negligence in the post-crash

rescue operations. Id. The defendants moved for and received summary judgment

based on the plaintiff’s having executed a release and indemnity agreement. Id. The

court first noted that a release cannot absolve an individual from his liability for gross

negligence, citing Golden Triangle Raceway, before observing that the plaintiff did not

explain how his summary-judgment proof raised a fact question as to gross negligence

and that nothing in the record contained allegations of the kind of egregious conduct

required to support a gross-negligence claim. Id. at *7. In a footnote, the court found

21
“Chief Justice Chapa’s dissenting opinion [in Newman] to be well reasoned” and

declined to follow the Newman majority. Id. at *7 n.1.12

The court later revisited the question in a plurality opinion within the context of

a utility company’s tariff. Del Carmen Canas v. Centerpoint Energy Res. Corp., 418 S.W.3d

312, 315–16 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The decedent’s children

sued a natural gas provider for negligence and gross negligence, among other claims,

after her apartment filled with gas and exploded, burning and ultimately killing her. Id.

at 316–17. Each of the three panel members (Chief Justice Frost and Justices

Christopher and Jamison) wrote an opinion. Id. at 315–16. The court issued a plurality

opinion on the negligence claims, on which it affirmed the trial court’s judgment; it

reversed the trial court’s judgment on the gross-negligence claim based on “section C.

of Justice Christopher’s [concurring and dissenting] opinion, which [formed] a majority

opinion of the court as to the gross-negligence claim.” Id. at 316.

The utility argued, among other things, that a gross-negligence claim did not exist

independently of an underlying negligence claim. Id. at 324. In dissent, Chief Justice

Frost, who otherwise wrote the majority opinion, agreed with Justice Christopher that

12
The court also noted that it had previously held that negligence and gross
negligence constituted two separable causes of action. Rosen, 1995 WL 755712, at *7
n.1. But cf. Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (noting that “excepting certain worker’s compensation cases, it is well
established that a finding of ordinary negligence is prerequisite to a finding of gross
negligence” and holding that negligence and gross negligence are not separable causes
of action but are inextricably intertwined).

22
the tariff’s limitation-of-liability bar did not compel the conclusion that gross-

negligence claims are also barred on the theory that they do not exist independently of

an underlying negligence claim, although the chief justice noted that in other contexts,

the absence of a common-law negligence duty or the plaintiff’s failure to prove a

negligence claim might preclude recovery under a gross-negligence claim. Id. at 326.

Section C. of Justice Christopher’s concurring and dissenting opinion, which

Justice Jamison joined, noted that the utility did not prove that it was not negligent but

rather that its tariff relieved it of liability for any such negligence. Id. at 329, 336. Justice

Christopher stated, “In this respect, I agree with Chief Justice Frost: when liability for

negligence is barred by a limitation of liability in a utility’s tariff, that bar does not

automatically defeat a claim for gross negligence.” Id. at 329. Justice Christopher

observed that the tariff acted as a pre-injury release. Id. at 331 & n.1. (citing Rosen and

noting “this court has repeatedly reached the same result” in expressly rejecting the

Newman majority opinion).

d. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc. (First
Court, 2002)

Tesoro involved an indemnity agreement entered into between an oil well operator

and a driller in which gross negligence and willful misconduct were specifically

excluded. 106 S.W.3d at 121–22. The oil well subsequently blew out, caught fire,

destroyed a drilling rig, and rendered the well unworkable. Id. at 123. The working-

interest owner sued the driller, who sought indemnity from the operator. Id. The owner

23
then settled without an admission of liability by anyone. Id. at 123. The trial court

granted summary judgment to the driller, and the operator appealed, arguing that to

defeat the driller’s indemnity argument, it needed only to show that the owner’s

pleadings asserted that the driller’s gross negligence and willful misconduct had caused

his losses. Id. at 124–25. The court noted that facts, not allegations, determine a duty

to indemnify and that there was no determination of liability when the owner settled.

Id. at 125–26. Further, to support its affirmative defense of contract exclusion, the

operator bore the burden to raise a fact issue on each and every element of the driller’s

alleged gross negligence or willful misconduct so as to bring the indemnity claim within

the indemnity agreement’s exclusions but had failed to show a genuine issue of material

fact on causation. Id. at 126.

The court then turned to whether compensatory damages could be awarded for

gross negligence and willful misconduct. Id. The court noted, “Negligence and gross

negligence are not separable causes of action[] but are inextricably intertwined.

Negligence is a liability finding[] involving duty, breach, and causation. Gross

negligence presumes a negligent act or omission and includes two further elements”—

the objective extreme degree of risk and the subjective awareness of the risk with

conscious indifference. Id. The court concluded, “We agree with the San Antonio

Court of Appeals, which has held that ‘the absence of a viable negligence claim removes

any justification for imposing actual damages” and that, in the context of a release for

acts of negligence, negligence and gross negligence are not separable. Id. at 127 (citing

24
Newman, 891 S.W.2d at 722). The court affirmed the summary judgment requiring the

operator to indemnify the driller. Id. at 135.

e. Akin v. Bally Total Fitness Corp. (Tenth Court, 2007)

In Akin, after the plaintiff’s father drowned in Bally’s swimming pool, the

plaintiff sued for negligence, gross negligence, and premises liability, among other

claims. 2007 WL 475406, at *1. Bally moved for and received summary judgment on

the ground of release. Id. at *1–2. The court affirmed the summary judgment on the

negligence claims but not on the gross-negligence claim. Id. at *2. Bally had claimed

that the release barred the plaintiff’s claim for gross negligence as well as for negligence,

but it did not negate any element of negligence or gross negligence, and “[t]he

negligence release does not prevent proof of gross negligence.” Id. at *3 (citing Newman,

891 S.W.3d at 723 (Chapa, C.J., concurring in part & dissenting in part)). In a footnote,

the court observed, “We do not believe that the First Court of Appeals [in Tesoro]

appreciated the limitations on the San Antonio Court’s holding [in Newman].”). Id. at

*3 n.1.

The court was careful to note, however, that its “very narrow holding” was that

the release in the case did not release a claim for gross negligence. Id. at *3 n.2. It

cautioned,

We do not express any opinion as to whether, in the context of this appeal
of a summary judgment, Akin properly pleaded gross negligence. Nor,
because this is not an appeal of a no-evidence motion for summary
judgment, do we express any opinion as to whether the record contains
any evidence of any of the elements of negligence (other than duty), or of

25
 gross negligence’s elements of extreme risk or actual awareness. We hold
only that on this record from a traditional motion for summary judgment,
Bally did not affirmatively attempt to negate the elements of gross
negligence and did not conclusively prove all the elements of a defense to
gross negligence.

Id.

f. Van Voris v. Team Chop Shop, LLC (Fifth Court, 2013)

In Van Voris, the plaintiff sued the defendant for negligence and gross negligence

after he was injured in the defendant’s aikido course. 402 S.W.3d at 917. The defendant

moved for and received summary judgment based on its affirmative defense of the pre-

injury release signed by the plaintiff. Id. The court held that the release defeated the

plaintiff’s negligence claim. Id. at 919–21. It then noted that the supreme court had

not yet addressed whether a gross-negligence claim could survive a negligence claim’s

defeat by the pre-injury release and that “courts of appeals have reached different

conclusions.” Id. at 921. The court concluded that the gross-negligence claim survived

summary judgment based on “the strong public policy against pre-injury releases of

liability for one’s own negligence, the Texas Supreme Court’s acknowledgement that

proof of actual damages and entitlement to those damages may be distinct issues in

some circumstances, the heightened requirements for proving gross negligence,” and

the application of these concepts to the case’s facts, including that the release did not

refer to gross negligence. Id. at 921–22, 924.

The court noted that neither the Newman court nor the Tesoro court had directly

addressed the relationship between the public policy issues surrounding a pre-injury

26
release of claims for gross negligence and the legal principles espoused by the courts

regarding the inseparability of ordinary and gross-negligence claims. Id. at 924–25

(citing Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901, 903 (Tex. 1985), for the

proposition that a finding on the existence and amount of actual damages is required

to support a punitive damages award, even if those actual damages are not recoverable).

The court also noted that while the release signed by the plaintiff effectively

released pre-injury claims based on negligence, it did not mention gross negligence or

suggest that the plaintiff “was releasing a right to prove the elements of a negligence

claim or actual damages, which would be a prerequisite to recovery of exemplary

damages.” Id. at 925. It observed that the distinction between recovery and proof is

significant when considered in the context of negligence and gross-negligence claims.

Id. And it held that while there “certainly are circumstances when negligence and

gross[-]negligence claims cannot be separated legally[,] [t]hose circumstances are not

presented in the context of a pre-injury, general negligence release.” Id. at 926.

The court concluded that the plaintiff had not relinquished his gross-negligence

claim based on the pre-injury release and that the release did not preclude proof of

claims for negligence and actual damages (necessary for the gross-negligence claim), so

it reversed the summary judgment on the gross-negligence claim and remanded that

portion of the case for further proceedings. Id. However, it limited its conclusion “to

the context presented by this case.” Id.; cf. Quiroz v. Jumpstreet8, Inc., No. 05-17-00948-

CV, 2018 WL 3342695, at *4–5 (Tex. App.—Dallas July 9, 2018, pet. denied) (mem.

27
op.) (distinguishing Van Voris, upholding summary judgment when release expressly

listed “gross[-]negligence claims,” and noting that the supreme court has not yet ruled

on whether a pre-injury release of gross negligence is against public policy “when there

is no assertion that intentional, deliberate, or reckless acts cause[d] injury”).

3. Application

Based on our review of the relevant authorities cited above, we conclude that

there is indeed a distinction between lacking any evidence to support a viable negligence

claim, which would defeat a gross-negligence claim, and a viable negligence claim that

is subject to a release when a related gross-negligence claim is not subject to that release.

See Van Voris, 402 S.W.3d at 925. That is, if there is sufficient evidence to support a

jury’s identification of an actual damages award for negligence—even if those damages

would not be recoverable because of a release—then the gross-negligence claim should

not automatically disappear in the negligence claim’s defeat by release on summary

judgment. See Ryan S. Holcomb, Comment, The Validity and Effectiveness of Pre-Injury

Releases of Gross Negligence in Texas, 50 Baylor L. Rev. 233, 249 (1998) (“[T]he same logic

and analysis that allows an employee to step outside the Workers’ Compensation Act

and recover damages based on the employer’s gross negligence should be applied to

allow a party who has released its negligence cause of action in a pre-injury release to

recover damages based on gross negligence.”). If there is not sufficient evidence to

support a viable negligence claim, then there will not be sufficient evidence to support

a gross-negligence claim. See Reyna v. Acad. Ltd., No. 01-15-00988-CV, 2017 WL

28
3483217, at *8 (Tex. App.—Houston [1st Dist.] Aug. 15, 2017, no pet.) (mem. op.)

(noting that when appellants failed to establish breach of a legal duty, there was no need

to reach their gross-negligence assertions).

Further, because nothing in the release here prevents proof of gross negligence,

see Akin, 2007 WL 475406, at *3, if Hill brought forth sufficient summary-judgment

evidence to defeat L.A. Fitness’s no-evidence grounds, then because L.A. Fitness did

not amend its summary-judgment motion to add gross negligence’s additional elements,

we must sustain this portion of Hill’s sub-issue. Accordingly, we turn to the no-

evidence summary-judgment standard of review, L.A. Fitness’s no-evidence grounds,

and Hill’s remaining summary-judgment evidence.

4. No-evidence summary judgment

When reviewing a no-evidence summary judgment, we examine the entire record

in the light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.

2006). We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005)). We credit evidence favorable to the nonmovant if reasonable jurors could, and

we disregard evidence contrary to the nonmovant unless reasonable jurors could not.

Timpte Indus. Inc v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than

29
a scintilla of probative evidence that raises a genuine issue of material fact, then a no-

evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424

(Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

a. No-evidence grounds

L.A. Fitness asserted that Hill (1) had no evidence of actual or constructive

knowledge of a condition on the premises that posed an unreasonable risk of harm,

including no evidence that it had created the condition, which would show actual

knowledge, and no evidence that it was or should have been aware of the condition

before Hill’s accident; (2) had no evidence of an unreasonable risk of harm; (3) had no

evidence that L.A. Fitness failed to exercise reasonable care to reduce or eliminate the

risk; and (4) had no evidence of proximate cause.

(1) Actual or constructive knowledge

Regarding actual or constructive knowledge, an invitee may raise a fact issue by

presenting evidence establishing that (1) the defendant placed something on the floor;

(2) the defendant actually knew that the material was on the floor; or (3) it is more likely

than not that the condition existed long enough to give the premises owner a reasonable

opportunity to discover it. Harkins v. Wal-Mart Stores Tex., LLC, No. 02-21-00201-CV,

2022 WL 3453548, at *5 (Tex. App.—Fort Worth Aug. 18, 2022, pet. filed) (mem. op.

on reh’g) (citing Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)). The

owner’s creating a condition that posed an unreasonable risk of harm may support an

inference of knowledge. Id.

30
 Constructive knowledge has a temporal element. Vernon v. Dallas/Fort Worth Int’l

Airport Bd., No. 02-16-00488-CV, 2017 WL 2979828, at *2 (Tex. App.—Fort Worth

July 13, 2017, no pet.) (mem. op.). When circumstantial evidence is relied upon to prove

constructive notice, the evidence must establish that it is more likely than not that the

dangerous condition existed long enough to give the proprietor a reasonable

opportunity to discover it. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936–37

(Tex. 1998) (“Dirt in macaroni salad lying on a heavily[ ]traveled aisle is no evidence of

the length of time the macaroni had been on the floor.”); see Reece, 81 S.W.3d at 814

(“Because Reece presented no evidence that Wal-Mart placed the foreign substance on

the floor or actually knew it was there, she had to prove that the spill had been on the

floor for a sufficient period of time that Wal-Mart had a reasonable opportunity to

discover it.”).

(2) Unreasonable risk

A dangerous condition that presents an unreasonable risk of harm is one that

creates a substantial risk of injury when the property is used with due care in a manner

in which it is reasonably foreseeable that it will be used. Harkins, 2022 WL 3453548, at

*5. In assessing actual knowledge that a condition presents an unreasonable risk of

harm, courts may consider whether the owner had received reports of the potential

danger presented by the condition. Id. In determining whether a condition is

unreasonably dangerous, courts have considered whether the relevant condition was

clearly marked, its size, whether it had previously caused injuries or generated

31
complaints, whether it substantially differed from conditions in the same class of

objects, and whether it was naturally occurring. United Supermarkets, LLC v. McIntire,

646 S.W.3d 800, 803 (Tex. 2022). Reasonable care regarding a wet floor may be

adequately established by an employee’s warning a customer to “watch the wet spot,”

or a wet floor warning sign and a verbal warning to be careful because the “floor may

be a little damp.” Henkel, 441 S.W.3d at 252. “Texas courts have consistently found

that indoor wet floors can pose an unreasonably dangerous condition.” Wal-Mart Stores,

Inc. v. Sparkman, No. 02-13-00355-CV, 2014 WL 6997166, at *3 (Tex. App.—Fort

Worth Dec. 11, 2014, pet. denied) (mem. op.); cf. M.O. Dental Lab v. Rape, 139 S.W.3d

671, 672, 676 (Tex. 2004) (holding, as a matter of law, that ordinary mud accumulating

naturally on a concrete slab outside of a business—without the assistance or

involvement of unnatural contact—did not pose an unreasonable risk of harm).

(3) Reasonable care

Other slip-and-fall cases have established that mats can prevent falls on wet tile.

See Biermeret v. Univ. of Tex. Sys., No. 2-06-240-CV, 2007 WL 2285482, at *6 (Tex. App.—

Fort Worth Aug. 9, 2007, pet. denied) (mem. op.) (“Clearly, at UTA, as at Brookshire

Grocery, more mats could have been used and warning signs posted.”); 13 see also

13
In Biermeret, the plaintiff paid to use the university’s exercise facilities, and it was
his normal routine to shower before swimming. 2007 WL 2285482, at *1. After taking
his preswim shower, he exited the shower, walked across the shower area on some mats,
stepped off of a mat onto an uncovered area of the tile floor, slipped, and fell on the
tile floor. Id. Although he established through emails that the tile floor in the shower
area routinely became wet and slick, that a prior facility user had slipped and fallen on

32
Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006) (recounting that store

employee testified that more mats could have been used and warning signs posted).14

(4) Proximate cause

The proximate cause element of a premises-liability claim has two components:

cause-in-fact and foreseeability. Harkins, 2022 WL 3453548, at *6 (citing LMB, Ltd. v.

Moreno, 201 S.W.3d 686, 688 (Tex. 2006)). The test for cause-in-fact, or “but-for”

causation is whether (1) the act or omission was a substantial factor in causing the injury

and (2) without the act or omission the harm would not have occurred. LMB, Ltd., 201

S.W.3d at 688. A premises-liability plaintiff facing a no-evidence summary-judgment

motion on causation has the burden to produce summary-judgment evidence that her

accident was a foreseeable result of the defendant’s failure to use reasonable care to

reduce or eliminate an unreasonably dangerous premises condition and that the

the wet tile, and that the wet, slick tile floor was a hazard to people using the shower,
there was no evidence that the university possessed actual or constructive knowledge
that the water was on the floor in the shower area when he slipped. Id. at *6.
14
In Brookshire, a store patron slipped and fell on a piece of partially melted ice on
a tile floor in front of a self-service drink dispenser. 222 S.W.3d at 407. An employee
testified that ice fell from the dispenser on a daily basis, that it was a hazard to customers
and had to be cleaned up regularly, that there were three mats around the front of the
dispenser that did not completely cover the tile floor, and that the plaintiff had slipped
where the floor was bare. Id. The employee further testified that more mats could have
been used and warning signs posted. Id. The supreme court concluded that the only
unreasonably dangerous condition in the case was the ice that was actually on the floor,
that the store did not have actual knowledge of it, and that there was no evidence that
the condition had lasted long enough—the ice not having fully melted—for the store
to have constructive notice. Id. at 409.

33
defendant’s failure was a substantial factor in causing her injuries. See id. Mere proof

that the injuries occurred on the defendant’s premises is not proof of such proximate

cause. Id.

b. Hill’s deposition

Hill attached her deposition to her summary-judgment response. In her

deposition, Hill testified that she had slipped and fallen on water on the floor in the

women’s locker room, resulting in a ruptured hamstring that prevented her from

walking for six months after reattachment surgery. At the time of the incident, she had

been going to L.A. Fitness two or three times a week to train for a planned hike in

Colorado. She had not kept a rigid schedule but would usually go from midmorning to

around noon or 1 p.m. Hill did not recall what time she had gone to L.A. Fitness on

the morning of the incident.

After exercising that day, she had gone into the locker room area, walked past a

row of sinks, went to pull the door open and her leg “kind of slipped out in front” of

her. Hill stated,

My hand was on the door. I took a step forward with my right leg, . . .
probably six inches maybe[,] my foot slipped kind of in front of me.

The door was still closed. . . . And I had to get on the ground, and
I couldn’t go any further. And when I sat down, there was water.

....

And I don’t know how long I sat there, but I eventually got off the
wet puddle on the floor on the tile, and I made my way over to the

34
 carpeted area because there’s a strip of carpet just where . . . the lockers
and the benches are.

Hill testified that the amount of water in front of the door had been “probably

half to quarter of an inch, and it was probably the width of the door or, you know,

covered significantly . . . [t]hey had to mop up after -- after I got . . . onto the bench,

they sent someone in to mop.”

Hill stated that she assumed the water had come from women in swimsuits from

an aqua class that “meets regularly during that time” or from the shower area, stating,

“So women get out of the shower. They get out of the pool, and they walk directly to

the carpeted area to go to the locker.” When confirming, however, that this was Hill’s

assumption that the water had come from the women in swimsuits, Hill replied, “[H]ow

would I know?” She restated, “My assumption is that the women in swimsuits that had

just gotten out of the pool and the shower walking to the locker, that they dripped water

onto the floor.”

When asked if she had seen water in that area before the day of her accident, Hill

replied, “They mop a lot, clean up a lot that time of day, but, you know, it’s a locker

room. There’s water on the floor sometimes. I mean I’m careful, but that day I did

not see the water. [There] was not a sign.” Hill said that she did not know how long

the water had been there and that there was no mat down, although “at Highland Village

in the same area, they have mats down.” She stated that she was not aware of anyone

at L.A. Fitness who knew about the water before her fall, but she also stated that L.A.

35
Fitness set the time for the popular aqua class and would know when it started and

ended.

When Hill returned to L.A. Fitness to cancel her membership, she “went into

the restroom to see if they put a mat down where [she] slipped, and they still hadn’t.”

L.A. Fitness’s defense counsel asked Hill if there was anything else important

about the incident, and Hill replied, “Yes. The janitor apologized to me after I slipped

and fell as she’s mopping. She said, ‘I’m sorry you got hurt,’” and then she put a sign

down warning that the floor was wet. Hill also stated that when she asked L.A. Fitness’s

front desk employee why there had been no mat, that person replied, “[T]hey told me

it was a nonslip floor,” and she retorted to the employee, “I proved that wrong.” Hill

opined that if there had been a mat down, she would not have fallen because she had

been wearing good shoes and had been steady and strong.

During her counsel’s questions, when asked how much water was on the floor,

Hill replied, “I would say a few cups. It’s hard to tell because the floor is a white floor.

The lighting is not very good. I would say fourth of an inch to half an inch, probably

the width of the door.” She also said that the water had pooled because the tile was

not flat and that there were women from the aqua class in the locker room who were

still in their swimsuits in the process of changing and leaving. She stated that L.A.

Fitness’s building was large and that it had “very few people working.” Although there

was sometimes a janitor or locker room attendant in the locker room to mop, Hill

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speculated that the janitor had to be somewhere else that day and “wasn’t able to get to

that area” until after Hill fell.

Hill said that the L.A. Fitness at Highland Village had mats “outside the door.

They have all through the walkways. It’s very well -- they have a lot of mats in that area,

and I always wondered why we didn’t have them.” Hill said there were no mats in the

area when she fell and “after [she] fell, they did not put a mat down.” She described

the Highland Village mats as having holes in them to create traction between customers’

feet and the slippery floor, stating, “the water would have pooled in the holes and not

on the floor.”

c. Analysis

The membership agreement shows that Hill executed it at the Denton L.A.

Fitness location, and her deposition testimony reflects she fell at that location. Hill’s

testimony reflects that L.A. Fitness set the start and end times for the aqua class and

that it usually had someone clean up “that time of day,” creating a fact question as to

whether L.A. Fitness had actual knowledge of when its patrons would be changing out

of wet swimsuits in the dressing room (giving rise to the floor’s slippery condition). Cf.

Vernon, 2017 WL 2979828, at *3 (noting that airport board presented evidence that

none of its employees were aware of the standing water in the bathroom before the

plaintiff’s injury despite inspection and cleaning every 30 minutes and that its evidence

was buttressed by the plaintiff’s testimony that no warning signs had been posted, that

she did not see any airport employees or janitorial workers in the bathroom, and that

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she did not know how the water got there); Gillespie v. Kroger Tex., L.P., 415 S.W.3d 589,

593 (Tex. App.—Dallas 2013, pet. denied) (affirming no-evidence summary judgment

on premises-liability claim when plaintiff failed to provide any evidence that Kroger had

actual or constructive knowledge of restroom’s condition at the time of her fall);

Biermeret, 2007 WL 2285482, at *5–6 (holding that plaintiff failed to establish university’s

actual or constructive knowledge that floor had become wet and slick prior to his fall).

Hill also stated that the area was frequently mopped and cleaned up at “that time

of day” but that L.A. Fitness was understaffed and that its front desk employee had

thought the floor was “nonslip.” Hill testified that a nearby L.A. Fitness (Highland

Village) put down mats “in the same area,” “outside the door,” and “through the

walkways”; that the Highland Village L.A. Fitness had “a lot of mats in that area”; and

that she had “always wondered why [the Denton L.A. Fitness] didn’t have them.”

When she returned to Denton L.A. Fitness after the accident to cancel her membership,

she “went into the restroom to see if they put a mat down where [she] slipped, and they

still hadn’t.”

Viewed in the light most favorable to Hill and based on her testimony, there is

more than a scintilla of evidence that L.A. Fitness had actual or constructive knowledge

(based on setting the aqua class schedule) that water pooled in the locker room area at

that time of day; that failing to place mats or a “wet floor” sign in the area at that time

posed an unreasonable risk that someone would slip when a nearby L.A. Fitness placed

mats in the same area; that failing to have someone that day at that time to mop (when

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the area was usually cleaned) demonstrated a lack of reasonable care to reduce or

eliminate the risk, particularly when it failed to put a mat in that area even after Hill’s

fall; and that L.A. Fitness’s failure to exercise reasonable care had proximately caused

Hill’s injuries when it is foreseeable that a wet floor—unmarked by any caution signs—

could cause someone to slip and fall.

Because there is more than a scintilla of evidence that L.A. Fitness was negligent

on the premises-liability theory—even if Hill could not prevail on that theory because

of the release—the trial court erred by granting L.A. Fitness’s no-evidence motion as

to gross negligence when L.A. Fitness did not amend its motion to affirmatively attempt

to negate gross negligence’s additional elements or to conclusively prove all of the

elements of a defense to gross negligence. See O’Donnell, 288 S.W.3d at 424; see also

Campbell v. Pompa, 585 S.W.3d 561, 577 (Tex. App.—Fort Worth 2019, pet. denied)

(explaining that gross negligence consists of both objective and subjective elements

beyond regular negligence); Akin, 2007 WL 475406, at *3 n.2 (declining in traditional

summary-judgment appeal to opine about whether the appellant properly pleaded gross

negligence or whether the record contained any evidence of negligence or gross-

negligence elements); cf. McCloskey, 2017 WL 6502444, at *4 (holding no-evidence

summary judgment was appropriate when the appellees filed no-evidence summary-

judgment motions on the appellant’s gross-negligence claim and the appellant failed to

provide any evidence of actual, subjective awareness of the risk or a decision to proceed

with conscious indifference). Accordingly, the trial court erred by granting L.A.

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Fitness’s motion on Hill’s gross-negligence claim, and we sustain this portion of Hill’s

sole issue.

IV. Conclusion

Having overruled part of Hill’s sole issue, we affirm the portion of the trial

court’s judgment granting summary judgment on her premises-liability claim (which

subsumed her negligence claim). Having sustained part of Hill’s sole issue, we reverse

the portion of the trial court’s judgment granting summary judgment on her gross-

negligence claim and remand that portion of the case for further proceedings.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: March 23, 2023

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